Allen v. Lowndes County Sheriff Dept. et al (INMATE2)

Filing 5

RECOMMENDATION of the Magistrate Judge that: (1) plaintiff's claims against the Lowndes County Sheriff's Department be dismissed with prejudice prior to service; (2) the Lowndes County Sheriff's Department be dismissed as a party to this complaint; (3) this case with respect to the remaining defendants be referred back to the Magistrate Judge. Objections to R&R due by 2/14/2007. Signed by Judge Wallace Capel Jr. on 2/2/07. (sl, )

Allen v. Lowndes County Sheriff Dept. et al (INMATE2)

Doc. 5

Case 2:07-cv-00090-ID-WC

Document 5

Filed 02/02/2007

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ______________________________ R O B E R T LEE ALLEN P l a in tif f , v. L O W N D E S COUNTY SHERIFF D E P T ., et al., D e f e n d a n ts . ______________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , Robert Allen ["Allen"], files this 42 U.S.C. § 1983 action, alleging that rig h ts , privileges, or immunities afforded him under the Constitution or laws of the United S ta te s are being abridged by the conduct and actions of Defendants. Upon review of the c o m p la in t, the court concludes that dismissal of the Lowndes County Sheriff's Department p rio r to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1 I . DISCUSSION A lle n names as a defendant the Lowndes County Sheriff's Department. The Lowndes C o u n ty Sheriff's Department is not a legal entity and, therefore, is not subject to suit or lia b ility under § 1983. Dean v. Barber, 951 F.2d 1210, 1214 (11 th Cir. 1992). In light of the * * * * * 2:07-CV-90-ID (WO)

A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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Dockets.Justia.com

Case 2:07-cv-00090-ID-WC

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Filed 02/02/2007

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f o r e g o in g , the court concludes that Allen's claims against this defendant are due to be d is m is s e d . Id. II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiff's claims against the Lowndes County Sheriff's Department be

D IS M IS S E D with prejudice prior to service of process pursuant to the provisions of 28 U .S .C . § 1915(e)(2)(B)(i); 2 . The Lowndes County Sheriff's Department be DISMISSED as a party to this c o m p lain t; 3 . This case with respect to the remaining defendants be referred back to the u n d e rs ig n e d for additional proceedings. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before February 14, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District

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Case 2:07-cv-00090-ID-WC

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Filed 02/02/2007

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C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 2 n d day of February 2007.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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